Letting Prosecutors Write the Law

It’s more common than you think.

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system. An audio version of Case in Point is broadcast with The Takeaway, a public radio show from WNYC, Public Radio International, The New York Times, and WGBH-Boston Public Radio.

After we published our “Case in Point” story of Doyle Lee Hamm, an Alabama death row inmate whose judge signed off on a vital 89-page opinion without apparently ever reading it, we received a wave of emails from defense attorneys. Representing clients in Georgia, Louisiana, Kentucky, South Carolina, and Ohio, they wanted us to know that this had happened to them, too, and that they believed from their long experience practicing in their jurisdictions that such “ghostwriting” was a routine part of capital practice in those states.

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system.

Ghostwriting occurs when prosecutors or state attorneys draft substantive opinions or orders that state judges then quickly sign, often without altering a single word or fixing typos, thus elevating to case law one side’s naturally biased view of the facts and the law of a case. The practice exists even though the Supreme Court has frowned on it and state bar officials have disciplined judges for it. It exists even though it undermines one of the more fundamental premises in our justice system; that judges will undertake an independent evaluation of contested issues in a case and not just take one side’s word for things. The result is that capital defendants remain on death row, or are executed, based on findings of fact and conclusions of law generated by the very people trying to execute them.

We are not talking about instances where a judge asks the attorneys in open court to help expedite the resolution of a case by drafting a brief order memorializing what the judge already has ruled. That type of bureaucratic “ghostwriting” is commonplace and makes the legal system more efficient. In Hamm’s case, however, as we reported, an Alabama judge received a complex “Proposed Memorandum Opinion” on a Friday and then signed it the following Monday without even striking the word “Proposed” from the title (or giving defense attorneys any time to react to it). This opinion has been cited as judicial gospel since 1999 to deny Hamm a new sentencing hearing.

When Hamm’s attorneys tried to hold a hearing to determine whether this judge ever actually read the opinion he had signed, they were blocked from doing so by lawyers for the Alabama attorney general, which was the office that had sent the “proposed” opinion to the judge in the first place. The U.S. Supreme Court now is considered Hamm’s appeal, with ghostwriting one of several issues Hamm’s attorneys have raised.

Our piece noted that this practice routinely occurs in Texas. It turns out Texas is hardly unique. In Ohio, in the case of Donna Roberts, convicted of murder and sentenced to death in 2003, the judge and prosecutor together drafted a sentencing opinion. Roberts’ attorneys didn’t discover this arrangement until the judge was reading the opinion in open court and the defense counsel noticed that prosecutors were reading along in unison, even though they should not yet have had a copy of what the judge was reading. The judge was sanctioned for violating the state’s judicial code of conduct and the death sentence was vacated because the judge’s delegation of a basic judicial function was “wholly inconsistent” with his ethical obligations.

The same thing happens in South Carolina. In the case of Johnny Bennett, one we’ve highlighted before because of racist remarks by the prosecutor in the case, the state attorney general wrote the opinion that the state now says the appellate courts should defer to in reinstating Bennett’s capital sentence. In that case, the judge signed off on a lengthy order written by state attorneys that included a blank page, countless typographical mistakes, and even a paragraph that mistakenly sought to give custody of Bennett to the state, which, of course, already had him in custody. The legal reasoning was so muddled, defense attorneys alleged, that in some instances it made no sense at all.

The issue also arose recently in Kentucky, in the capital case of Samuel Steven Fields. There, the Kentucky Supreme Court permitted the ghostwriting episode only after the trial judge who adopted the state’s findings verbatim swore under oath that he had independently evaluated them. A federal court now is reviewing that ruling, which means that the resolution of another death penalty case has been delayed by the practice. It happens routinely in Pennsylvania, too, and has for decades, says Robert Dunham, director of the Death Penalty Information Center, which tracks capital cases around the country.

Stephen Bright, the Yale Law School lecturer who is the president and senior counsel of the Southern Center for Human Rights, told me that the problem of ghostwriting in Alabama goes back decades but has never been squarely addressed by higher courts, in part because judges do not want to embarrass one another. He recounted the long-ago capital case of Timothy Davis, whose judge wrote a one-page order on a substantive matter and was told by a state appeals court to go back and better explain his rationale. The same trial judge then issued a second order that was equally void of analysis so the appellate court suggested he submit something along the lines of what state attorneys had proposed. The trial judge then signed the state's proposed order without changing a word and the appeals court endorsed that order.

Bright testified on Capitol Hill nearly 25 years ago on the topic when the Senate Judiciary Committee was considering the nomination of Ed Carnes for the 11th U.S. Circuit Court of Appeals. Bright told lawmakers that Carnes, then an Alabama prosecutor, was notorious for drafting substantive orders for state judges to sign and then arguing that those orders, adopted verbatim as in the Hamm case, were entitled to great deference on appeal. Carnes nevertheless was confirmed to the bench by the Senate in 1992. He is still on the 11th Circuit.

It happens so frequently in Georgia, capital attorney Brian Kammer told me, and state judges have so protected each other from criticism for using ghostwriters, that the issue rarely is even litigated any more. One such case, cited by Atlanta Journal-Constitution writer William Rankin, involved a capital defendant named Lawrence Jefferson, whose judge asked state attorneys to prepare an order for him to sign to reject Jefferson’s appeal. State lawyers submitted a 45-page order, which the judge immediately signed without even fixing typos — like the misuse of the word “constitutionally” — that peppered the document. The U.S. Supreme Court considered the case, and delayed Jefferson’s execution in part because of this egregious episode of ghostwriting, but did not definitively outlaw the practice.

The practical problem is that so many judges are so overworked and understaffed that they use ghostwriting by state attorneys to help move along cases that might otherwise take months or years to resolve. The constitutional problem, as the Hamm case illustrates, is that a judge who blithely signs off on a lawyer’s work has effectively allowed the prosecutor to serve as judge.

An earlier version of this article incorrectly identified Stephen Bright as director of the Southern Center for Human Rights.

Supported by the Louis Lowenstein Award for Criminal Justice Commentary.